Pres. Obama is now responsible for replacing a legal giant
The importance of Justice Antonin Scalia, who passed away on Saturday, is hard to exaggerate. He wasn’t just an important conservative voice on the Court; he was transformative, moving the Court’s center of gravity, it’s “common sense,” so to speak, in remarkable new directions.
Take his reading of the Second Amendment, for example. The idea of an “individual right” to bear arms is as alien to Court precedent as it is to a plain reading of the “well-regulated militia” clause; indeed, as recently as 1991, former Chief Justice Warren Burger called the “individual right” theory “a fraud” perpetrated on the American people by a “special interest group”. But Justice Scalia’s majority decision in DC v. Heller, while initially limited in scope, has been so influential that even President Obama, a committed proponent of gun control, has assented to the idea that individuals have a constitutionally-protected right to bear arms.
Justice Scalia’s influence can best be measured by the growing influence of the two legal theories he spent his career championing.
“Textualism” is premised on the seemingly straight-forward proposition that “legal authority attaches to the text of a duly enacted statute, not to the unenacted intentions of legislators”. I say “seemingly straight-forward,” but Scalia’s thesis is actually quite novel. Interpreting statutes is central to the work of federal courts, and when Justice Scalia joined the bench in 1986, examining legislative history to determine the “intentions of legislators” was the way that work was done. That this is no longer true (the Washington University Law Quarterly estimates that the rate of Supreme Court decisions citing legislative history had dropped from 100% of cases involving statutory interpretation in 1981 to 18% by 1991) is in large part due to Antonin Scalia. To put it another way, precedent now directs judges to ignore the intentions of members of Congress in favor of the readings of law provided by the conservative wing of the Supreme Court.
Justice Scalia argued that, actually, the shift towards “textualism” on the Court empowered the clear wording of legal statutes, and not conservatives. But American law – from the Constitution on – is not especially amenable to plain reading. A plain reading of the Second Amendment, for example, suggests to me that well-regulated militias are crucial to the right to bear arms; but apparently not. The Eighth Amendment, to take another example, forbids “cruel and unusual punishments,” but when the Court ruled, in Atkins v. Virginia, that executing people with intellectual disabilities is “unusual” by virtue of being banned in a majority of states, which seems at least mathematically clear, Justice Scalia dissented.
That dissent takes us to Scalia’s second central theory, the concept of “originalism.” This doctrine holds that the Constitution must be interpreted according to, in Scalia’s words, “the original meaning of the text.” In other words, while legislative history is irrelevant to interpreting the Affordable Care Act, authorial intention is central to reading the Bill of Rights. The Eighth Amendment was ratified in 1791; therefore, the question is not what majorities of Americans currently consider “cruel or unusual” punishments, but what was defined as “cruel and unusual” in the 18th century (and, as I like to remind my students, in the 18th century, Americans used to cover people in hot tar and feathers because we thought it was funny).
As anyone who has read Madison’s notes on the Constitutional Convention or tried to make their way through the confusing scrum of post-revolutionary Anglo-American law could tell you, however, “originalism” does not provide us with ONE clear reading of the Constitution. Even in 1789, the principles of our foundational legal charter were hotly debated according to the legal arguments and political viewpoints of its authors.
Justice Oliver Wendell Holmes brilliantly describes a Justice’s interpretive responsibilities regarding what happened after ratification: “When we are dealing with words that are also a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.” Despite the, in my opinion, wiser and more nuanced words of Justice Holmes, however, Justice Scalia has been quite successful at defending this theory too. As the Scalia obituary in the New York Times pointed out, when the minority dissented in the Heller case, they did so by making arguments about the original intent of the people who drafted the Second Amendment.
Justice Scalia’s passing therefore presents President Obama with a profound responsibility. The president has already said that he intends to “fulfill my constitutional responsibilities to nominate a successor in due time,” thereby giving the Senate “plenty of time[…] to give that person a fair hearing and a timely vote.” He has phrased his obligations correctly there; an even-numbered Supreme Court is hampered in carrying out its responsibilities, and the Constitution places the task of resolving that difficulty squarely before the president and the Senate.
Justice Scalia has been profoundly influential, and his career provides the president with a clear example, if any were needed, of how momentous Supreme Court appointments can be. Scalia’s scathing dissents and his pugnacious style on the bench led many observers to think he would be a fringe player on the Court when he joined it, but the lurch to the right in American politics and American law has been profoundly influenced by his tenure. The enormous repercussions of President Obama’s next choice could play out for decades to come.
And this is where we here in Maine come in. Senate Majority Leader Mitch McConnell has vowed to block any new appointments to the Supreme Court until after the next president is sworn in next year, leaving the court hobbled and its legitimacy undermined. There is going to be a lot of pressure on the GOP majority in the Senate in the months ahead to at least spare the Supreme Court their hostage-taking and bomb-throwing legislative style. Senator Susan Collins has nurtured a reputation for responsibility to her office and her constituents. Now would be a good time for Mainers to let her, and Senator Angus King, know that the we will punish at the ballot box those who would hold the Court hostage. The living history of American law, and the future of Americans in general, rests on what they, and we, do next.
Photo via Flickr/Stephen Masker
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